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Con Law 2
FREEDOM OF SPEECH
| Question | Answer |
|---|---|
| first Amendment | shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Gove for a redress of grievance |
| First Amendment Application | Applied to federal via the BOR/ applies to state via 14th |
| Regilation of Freedom of speech | Government regulation, Types of speech, and Location |
| Government regualtion | Prior restraint, punishment compel, cost, discretionary benefits, vauge/ OverBraod, content netrau v. content based, Government Speech |
| GR: Prior restraint | Near v. Minn. gov block publ, licening- Presumed uncon and the government bears the burden of overcoming the presumption contnet netrual - TPM IP- publication must directly or immediately cause the occurrence of event kindred to imperil the safety |
| GR: Punishment | Eugene v. debbs and Neb v. stuart CPD test nature and extent of the pretrial news less restrictive measures would have alleviated the effect of pretrial publicicity – effectiveness of a restraining order in preventing the threatened danger |
| GR: Compel | Compulsion to speak constitutes an infringement of the speech clause – UNCONSTITUTIONAL West VA V. BARNETTE Janus v. American federation of state- 1st – right to speak and right to refrain from speaking – Gove can use SS to justfy |
| GR: Cost | Government may remove the monetary benefits one would otherwise receive from speech Government may impose monetary liability for one’s speech Simon & schuster v. Members of the new York state crime- son of sam civil/ crime fines |
| GR: Discretionary Benefits | Government may not condition a grant of a discretionary benefit on the relinquishment of a constitutional rightcondition becomes so coercive that it constitutes an infringement occurs when condition is a penalty and not a subsidy SPEISER V. RANDALL |
| GR:DB- EXCEPTION | RUST V. SULLIVAN- Government can give funding without violate con, selectively fund a program believes public interest – GSD different from just being a reg Distiction between funding, deniing and punishment- this is diff denying funding and uncon |
| GR: DB- EX: Distinguish rust | Legal services v. velaquez- Distinguehs rust, ruled uncon – not gov speech – private speech when providing money to indigent cleints |
| GR: V/OB: Vauge | Vauge- If a reasonable person would not know what speech a law permits or forbids- Grayned v. city of rockford- was a T, P, M |
| GR:V/OB: Overbroad | If it regulates substantially more protected speech than is necessary to effectively regulate the unprotected speech overly broad if, in proscribing unprotected speech, it also proscribes protected speech.- for unprotected -GOODING V. WILSON- |
| GR: Content Based | Laws that by the terms distinguish favored speech from disfavored on the basis of the views or ideas Subject matter- when it restricts the subject of speech Viewpoint based if it restricts based on the speakers viewpoint USE SS |
| GR: CB: SS | Strict Scrutinty – narrowliy tailored a law will be upheld only if it is necessary to achieve a compelling government purpose – other option thing too |
| GR: Content Neutral | Laws that confer benefits or impose burden on speech without reference to the ideas or view expressed are instances content neutral —absent substantial justification- often T,P, MR If facially netural – then will be treated as such |
| GR:CN:IS | law upheld if it is subrelated to an important gov purpose.- show alt measures not work the gov interest is unrelated to the suppression of free expression, and if the incidental restriction is no greater then essential to futher the interest -obrien |
| GR: CN: Cases | Police department of Chicago v. mosely – subject matter – cant deny a platform like this - but Time, place, and manner regulation of picketing may be necessary to futher significant governmental interests Mccullen v. Coakley –content neutral bc descr |
| GR:CN: Consideration | Purpose: 1. TURNER BROADCASTING SYSTEM V. FCC- Protecting free local broadcast tele- method not content City of Renton v. Playtime- Secndary effects |
| GR:CN:C: Secondary Effects | Secondary effects doc- A facially content- based regulation as content netural – bvecsue it the purpose – here to avoid criem and society stuff- studies gov can almost always offer CN purp-- ussaly limited to where justifs for reg have nothing intent |
| GR: Government Speech Doctrine | Government has its own rights- can assert its own ideas and messages without being subject to 1st amendment claims of viewpoint discrimination FACTORS: loca, pub prox, people would recognize as government speech, context in which speech occurs |
| GR: GSD: Meaning | govercan discriminate on content as long as they do so not violate neutrality should government subsidize one protected right (family planning), it does not follow that government must subsidize analogous counterpart rights (abortion) SUMMUN/ MATAL |
| Types of speech | protecetd, unprotected, limited |
| TS: Protected: Pure | Pure speech - When you communicate with another person orally or in writing Even when offensive it is protected- CANTWELL V. CONN. |
| TS:P: Symbolic Speech | nonverbal behavior intended to convey a specific message that is likely to be understood by observers – same protect as pure speech |
| TS:P:SS: Test GOV REGS | OBRIEN TEST – burning draft within the conslti power of the gov futhers an important or substantial gov int gov int is unrelated to the supof free exp and incidential rest on first a freedom is not greater than is essential |
| TS: P: SS: TEST=SS | TEX. V. JOHNSON - Whether an intent to convey a particularized message was present AND the likelihood was great the message was understood by those who viewed it SPENCE V. WASHINGTON – peace flag |
| TS: P: POLITICS | BUCKLEY V. VALEO- donations are speech – can be some limitation based on brbbery concers- but only to fincail donation not other thing or what campaiginer does. |
| TS: P: POLITICS- org | CITIZENS UNITED V. FEC - Corporation political speech - corporation, unions can make indpendnet expendtures connected to campaging – theire voice Republican PARTY OF MINN. V, white- protections for speaking on political matter |
| TS: Unprotected | Obscenity, Defamation and Fraud, Incitement, Fighting words. True threats, Speech integral to criminal conduct, Child pornography |
| TS:UN: Incitement of Illigal activity | Brandenburg test - state may not proscribe advocacy of violence for political reform unless that speech is advocating imminent lawlessness and likely to produce violence.-Probability, Immanence (of Danger)-Gravity of Harm, Intent to harm, Express |
| TS:UN: Fighting Words | CHAPLINKSY TEST- men of common intelli would understand words likely to cause an average addresse to fight - By utterance inflict injury or intent to incite an immediate BOP intent, directed at a specific person, and likely to incite violence |
| TS:UN: True Threats | Statement where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individual Intent cant be presumed- VA v. Black |
| TS: UN: Obscenity | ROTH- determined unprotected, |
| TS:UN:OB: TEST | MILLER: aver per, apply contp com stand would find work, to the prurient interest-sexual/ depicts in a offensive way, sexual conduct defined by app state law; and (local morals,/ work, lacks serious literary, artistic, political, or scientific value. |
| TS:UN: Child Pornograpghy | NEW YORK V. FERBER- Focus on creation of material, looking at Nature of state interest, Harm cause by creating such contnet not harm to viewer- creates CATAGORICAL BAN |
| TS:UN: Speech Integeral to criminal conduct | STEVENS- attempt to ban animal cruelty- overbroad nope |
| TS:UN: Defimation/ Fraud | Defamation: false, unprivileged statement of fact published to a third party that harms a person's or entity's reputation. Fraud: false speech made with the intent to decive |
| TS:UN: Special | RAV V. ST PAUL- Cant have categorical = content based distinctions within the categories of unprotected speech themselves |
| TS:LP: Commercial speech | Speech that is nothing more then propose a commercial transaction |
| TS:UN:LP:CS- specifics | NO protection for false or misleading VA BOARD PHARMACY Normal regulation T, P, M VA BOARD PHARMACY |
| TS: LP:CS:TEST | HUDSON – gov analysis- A) Speech must be truthful & concern lawful activities, (B) Substantial gov interest, (C) Regulation “directly advances” gov interest, (D) Regulation no more extensive than necessary (not strict scrutiny) |
| TS: LP: Profanity/ Indecent | Offensive speech that includes swear words and sexually explcit words- involve non-obscene speech which nonetheless might receive less protection because of its sexual or profane content COHEN V. CALIFORNIA - no cap audi |
| TS: LP: Profanity/ Indecent: School | tinker- disruption, morse- cap Aud, Bradni levy- out of class, Hazlewood - connection to school |
| TS: LP: Tortious | refers to spoken or written communication that causes legal injury to another, serving as the basis for a civil lawsuit (tort) rather than just being offensive – includes defemation When not a public official:- Statement was false . . check |
| TS: LP: Tortious- case | NYT v. suvilian - Public official : (A) the statements were false AND (B) and the D had actual malice=knew or was reckless regard truth |
| TS: LP: Sexually Explicit | doesn’t constitute obscenity or child porn - State may legitimately use the content of these materials as the basis for placing them in a different classification from other motion pictures Often used on secondary effects – and zoning |
| L: Public forum | Speech limited based on where the speech is done in connection to govenemnt ownership of location – both physical and meta physical |
| L:PF: Analysis | does the gover possess plenary power to restrict activity on its prope, as a private property owner would? Second, if not, how does government ownership of prop affect its power? And does the answer depend on the kind of prop at issue? |
| L:PF: Quintessential/Traditional | include streets and parks, places traditionally open to public “to assembly and debate.” Government restriction: mostlry just T, P, M CB - SS/ CN- IS |
| L:PF: Designated | Pub prop not hist open to speech-related activities, but gov thrown open for such activ on permanent or temp basis, by practice or policy it must provide equal access & limit restrictions to those “narrowly drawn to effectuate a comp state int.” INT |
| L:PF: D: Rules | Government restriction: mostlry just T, P, M government may close ant anytime\whenn there is a designated public forum the same rules apply that apply to traditional |
| L"PF"D: Limited | limited to use by certain groups or dedicated solely to the discussion of certain subjects Gov is entitled to restrict speech within limited public forum to maintain the forums purpose, as the rest are reas in light of the forum and viewpoint neutral |
| L:PF: NPF | Public property not by tradition or designation a forum for public comm- state may reserve for its intended purposes, i, so long as reasonable and not merely vp discri INTENT reaS the purpose served by the forum and are viewpoint-neutral |
| L:PF: Gov prop not FORUM | Any type when government uses that property to communicate its own message |
| L: PF: RELIGION | Government must treat religious speech identically to nonreligious speech and that limtiations on religious speech may violate the free speech clause |
Created by:
Vanderhoof_